Summer holidays – common problems for employers

18 / 07 / 2018

As school terms end and the recent heat wave continues workers now turn their attention to their summer break. As we enter this peak holiday season we examine some of the more common issues that employers may encounter over this period.

Can I prevent a new joiner taking holiday during their probationary period?

Potentially. Under the Working Time Regulations 1998 (WTR), workers accrue holiday from their first day. This holiday accrues at the beginning of each month at a rate of 1/12th of a full year’s entitlement, so if a worker enjoys 28 days holiday a year, they accrue 2.33 days of holiday per month. During the first year of service, employers can limit holiday taken to that which has been accrued. This would prevent an individual taking, say, two weeks holiday early in their employment as they would not yet have accrued the entitlement. Employers also have powers under the WTR and the contract to dictate when holiday can be taken.

Am I obliged to agree a worker’s request for a three week holiday?

Under the WTR, when a worker wishes to take holiday, they are required to give notice to their employer of at least twice the amount of holiday that has been requested. In this case, as the worker wishes to take 15 calendar days, they must give at least 30 calendar days’ notice before the holiday is due to start. The WTR provides a mechanism for an employer to refuse such a request by allowing them to serve a counter-notice. This must be given at least as many calendar days before the date on which the holiday is due to start as the number of days which the employer is refusing, so in this scenario, at least 15 calendar days beforehand.

Notification requirements can be significantly tightened beyond what is stated in the WTR through a robust holiday policy or within the contract. A good policy/contract can limit the amount of holiday that can be taken at any one time and can stipulate when in the year that holiday may be taken.

We need to close the office over the summer for maintenance. Can I require the workforce to take holiday over this period?

Yes, so long as you give them the required notice. Under the WTR, and similar to the counter-notice provisions, an employer can give notice ordering a worker to take statutory holiday on specified dates, and this notice must be at least twice the length of the period of holiday that the workers are required to take e.g., if the workers are required to take five days holiday they must be given at least 10 days’ notice.  If you have regular shutdown periods, for example over Christmas, wording should be added to the contract that requires holiday to be saved and taken at times designated by the employer.

I have just received a call from a worker who is on holiday in Florida. They are feeling sick and want to convert the remainder of their holiday to sick leave. What should I do?

This area has generated a considerable amount of case law. The current position is that if a worker becomes sick whilst on holiday, they can move to sick leave and retake that holiday at a later date once they are feeling better.  It is therefore important to have robust sickness reporting procedures, including a requirement to provide a fit note. If the individual fails to comply with such procedures it could invalidate a request to convert to sick leave or to qualify for sickness payments.

The scenarios above provide a brief outline of the potential issues but each case will be fact sensitive. If you have any questions regarding holiday rights, we would be happy to help.